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“Officer Safety” Strikes Again

In the never ending saga of searches of vehicles due to the police fearing everything and everyone under the sun at all times, the Second District Court of Appeals recently upheld the search of a car because the officers were concerned that a weapon was inside of a pack of cigarettes. Well, that is actually a bit of an exaggeration, but not by much. The case is State v. Webb, 2010 Ohio 3844, and that relevant facts are as follows:

Officers were in a marked cruiser and noticed that Webb’s vehicle had made a turn without using a signal at least 100 feet prior to the turn. This horrendous act could not be ignored, so the police effectuated the traffic stop. The defendant’s car pulled into a driveway and both the driver and passenger immediately exited the vehicle. The officers thought this activity was strange and believed the occupants were attempting to distance themselves from something within the car. So, in response, the officers ordered the occupants back into the vehicle “just so they could be contained until we could determine what was going on exactly – remember that key fact as we go through this. But, as an aside, I have an explanation that is plausible for Dayton’s finest: what was going on was that people pulled into a driveway and got out of the car, as people tend to do once they reach their destination. Again, police fear any movement by humans, so it’s always best to remain absolutely still; try not to breath if you don’t have to.

As one of the officers approached the vehicle, he claims to have witnessed the passenger place something under the seat. Based upon this new observation, they now ordered the occupants to get out of the car, “to make sure weapons weren’t hidden just for our own safety.” Both occupants were then placed in the cruiser for, you guessed it … “officer safety,” and a search of the vehicle was quickly underway. The police then located some heroin gel caps inside a cigarette pack under the passenger seat, and Webb was charged with felony drug possession.

The officers admitted that had nothing been found in the car, they were merely going to issue the traffic citation and allow the gentlemen to go about their private business once they were finished. Now, of course, that is a false assertion. Anyone that practices criminal law knows full well that the police pulled the car over with the intention to search, and it was going to happen one way or another. The officers simply needed to figure out how they were going to later justify it to the trial court (oh, so many options). In this case, the justification was initially that police feared weapons were in the car. When this allowed them to locate some heroin in the pack of cigarettes, the police then decided to tow the vehicle, which allowed them to then do an “inventory search” of the car, which then led to the discovery of more heroin in a medicine bottle that was in the center console. Remember, an inventory search does not require any justification at all. As long as the officers have a basis to tow the vehicle (parking tickets, intoxicated driver), they can search the car to inventory all of its contents. The police need not have any probable cause that contraband is located within the vehicle, because, in theory, that is not the purpose of the inventory search. The purpose is to make a list of all items so as to protect the officers from claims of theft, and to ensure the owners get all of their belongings back.

But, in getting back to the initial search of the cigarette pack under the passenger seat, why was that allowed? Remember, the police claimed they needed to search under the seat because they were afraid a weapon was there. Why would a weapon be in a cigarette pack? Well, that’s where the analysis of the trial court takes a turn. What started out as a search of the vehicle for officer safety is transformed into probable cause that drugs are in the cigarette pack. Apparently, the trial court even realized that it is preposterous to claim the officer believed a weapon was in the pack, so in order to justify the search, he had to come up with something else. And, he certainly did here. The “furtive movements” of the passenger, plus testimony from the officer that drugs are often contained within cigarette packs, amounted to probable cause that drugs were in the pack. See how that works? The officer started by looking for weapons, but upon seeing a cigarette pack, had probable cause to believe drugs were inside of it. And, because no warrant is required to search a car if an officer has probable cause to believe that contraband is in the vehicle, the search was valid without a warrant. Keep in mind that the police had no reason to believe there were drugs in the car at the time the officer located the pack of cigarettes. He was supposedly looking for weapons! And if you believe that, I have a bridge to sell you.

So, let’s just recap for a moment:

1. Police notice a trivial traffic violation and effectuate the stop

2. Because the occupants exited the vehicle, the officers were scared and ordered them back into the car

3. Then they became scared that they were in the car where a weapon may be located, so now they have to get them out of there and into the cruiser. Then they must search for the weapons that can’t be reached from the cruiser anyway.

4. In search for the weapon, they see a cigarette pack.

5. Because cigarette packs are known to contain drugs, they have probable cause to believe drugs are in the car and can search anywhere they like.

For anyone that is not a police officer or trial judge, the easy way to have handled the situation would have been to give the guy a ticket while he was outside of the car and leave. You see, no need to fear a weapon in the car while the people are outside the car. But, of course, that would not have allowed them to search in the first instance, so the police had to come up with something else. By ordering them into the car, they could then claim they witnessed “furtive movements” making them scared and setting into motion the entire series of justifications allowing them look where they wanted. Which was the entire purpose of the stop to begin with. So, now you know the recipe for a full-blown search of a car based upon failing to use your turn signal.